George v. State

• Decision Date: 24 February 2009
• Docket Number: No. 73A05-0808-CR-503.,73A05-0808-CR-503.
• Citation: 901 N.E.2d 590
• Parties: Michael W. GEORGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

901 N.E.2d 590

Michael W. GEORGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 73A05-0808-CR-503.

Court of Appeals of Indiana.

February 24, 2009.

Stephen Gerald Gray, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Mellisica K. Flippen, Monika Prekopa Talbot, Deputies Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issue

Following a bench trial, Michael George appeals his conviction of possession of a controlled substance, a Class D felony. On appeal, George raises one issue, which we restate as whether the trial court properly concluded that the seizure of morphine tablets during a warrantless search of George's vehicle did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution. Concluding the trial court properly concluded the search did not violate either constitutional provision, we affirm.

Facts and Procedural History¹

At approximately 12:15 a.m. on February 26, 2007, Deputy Michael Cleveland of the Shelby County Sheriff's Department stopped George's vehicle for speeding on a rural stretch of highway near the intersection of State Road 9 and County Road 650 North in Shelby County. A check of George's identification revealed that his license was suspended and that he had been convicted in 2006 of operating a vehicle with a suspended license. Although he could have arrested George on the basis of this information,² Deputy Cleveland chose instead to issue George a citation for operating a vehicle with a suspended license. Because George was unable to drive and there were no passengers in the vehicle, Deputy Cleveland arranged to have George's vehicle impounded. Out of courtesy, Deputy Cleveland also offered to give George a ride to his destination. George accepted, and, around the time the two departed, Deputy Darren Chandler arrived to search the vehicle and inventory its contents before impounding it.

While searching a compartment on the driver's side door of the vehicle, Deputy Chandler discovered a lidless condom box. Inside the box was an amber-colored, translucent pill bottle that lacked a prescription label. Suspecting the pill bottle might contain contraband, Deputy Chandler sent a message to Deputy Cleveland's vehicle's computer stating he may have discovered "narcotics." Transcript at 117 (March 18, 2008, bench trial). Also around this time, and consistent with the sheriff's department's policy, Deputy Chandler opened the pill bottle and emptied its contents. Inside the pill bottle were eight round tablets, each displaying the same inscription. Deputy Chandler could not determine whether the pills were contraband, so he contacted a Shelbyville pharmacist and gave the pharmacist a description of them. The pharmacist searched a database of consumer drugs — a common tool in the pharmaceutical industry, used primarily for filling prescriptions — and determined the tablets were thirty-milligram doses of morphine. Deputy Chandler relayed this information to Deputy Cleveland, who placed George under arrest for possession of a controlled substance.

On February 26, 2007, the State charged George with possession of a controlled substance, a Class D felony, and driving with a suspended license, a Class A misdemeanor. On July 17, 2007, George filed a motion to suppress evidence seized during the vehicle search. On November 7, 2007, the trial court conducted a suppression hearing, at which it heard testimony from Deputies Cleveland and Chandler. On January 8, 2008, the trial court entered an order denying George's motion. The case culminated in a bench trial on March 18, 2008, with the trial court again hearing testimony from Deputies Cleveland and Chandler, as well as from the pharmacist who identified the tablets as morphine. The trial court also admitted evidence seized from the vehicle search over George's objection. Based on this evidence, the trial court found George guilty of both charges. George now appeals his conviction of possession of a controlled substance only.

Discussion

I. Standard of Review

In cases such as this one, where the defendant does not appeal the denial of a motion to suppress and the evidence is admitted over the defendant's objection at trial, the issue is framed as whether the trial court abused its discretion in admitting the evidence at trial. Cochran v. State, 843 N.E.2d 980, 982-83 (Ind.Ct.App. 2006), trans. denied, cert. denied, 549 U.S. 1122, 127 S.Ct. 943, 166 L.Ed.2d 722 (2007). This court will reverse such a ruling if the trial court has abused its discretion. Id. at 983. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Id. In making this determination, this court does not reweigh evidence and considers conflicting evidence in a light most favorable to the trial court's ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App. 2007). Moreover, this court considers evidence from the trial as well as evidence from the suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.Ct. App.2005).

II. Fourth Amendment Violation

George argues the vehicle search violated the Fourth Amendment of the United States Constitution. The Fourth Amendment states in relevant part, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The purpose of this provision is to protect people from unreasonable search and seizure, and it applies to the states through the Fourteenth Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind.2001) (citing Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). The remedy for a violation of the Fourth Amendment is to render inadmissible any evidence seized during the illegal search. Mapp, 367 U.S. at 654-55, 81 S.Ct. 1684.

"The Fourth Amendment requires the police to obtain a search warrant from a neutral, detached magistrate prior to undertaking a search of either a person or private property, except under special circumstances fitting within `certain carefully drawn and well-delineated exceptions.'" Sellmer v. State, 842 N.E.2d 358, 362 (Ind. 2006) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The State concedes Deputy Chandler's inventorying of the vehicle was a search and that it was conducted without a warrant. As such, Deputy Chandler's search was per se unreasonable, and the State bore the burden of convincing the trial court that the search fell within one of the well-delineated exceptions to the warrant requirement. See Ludlow v. State, 262 Ind. 266, 269, 314 N.E.2d 750, 752 (1974) (citing Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970)). On appeal, the question becomes whether the trial court abused its discretion when it concluded the search fell within one of these exceptions.

The parties' arguments address the applicability of the "inventory search" exception. Before addressing these arguments, some general principles are in order. The inventory search exception permits a police officer to conduct a warrantless search of a lawfully impounded automobile if the search is designed to produce an inventory of the vehicle's contents. Fair v. State, 627 N.E.2d 427, 430 (Ind.1993) (citing South Dakota v. Opperman, 428 U.S. 364, 365, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)). Such searches "serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Because impounding a vehicle is viewed as fulfilling a caretaking function rather than a criminal investigatory function, the exception does not require probable cause. Fair, 627 N.E.2d at 430 (citing Opperman, 428 U.S. at 370 n. 5, 96 S.Ct. 3092); see also United States v. Cherry, 436 F.3d 769, 772 (7th Cir.2006) ("Inventory searches are a recognized exception to the warrant and probable-cause requirements of the Fourth Amendment."), cert. denied, 549 U.S. 1119, 127 S.Ct. 934, 166 L.Ed.2d 717 (2007).³ To determine whether a search falls within the exception, a reviewing court must examine

two overlapping sets of circumstances. First, the propriety of the impoundment must be established because the need for the inventory arises from the impoundment. Second, the scope of the inventory must be evaluated. Where either is clearly unreasonable, the search will not be upheld. In borderline cases, however, the ultimate character of the search is often most clearly revealed when both the necessitousness of the impoundment and the scrupulousness of the inventorying are viewed together.

Fair, 627 N.E.2d at 431. George concedes the impoundment was proper, so our focus turns to the scope of the inventory search.

To safeguard against "a general rummaging in order to discover incriminating evidence," id. at 435 (quoting Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)), an inventory search must be conducted in conformity with "standard police procedures" that are "rationally designed to meet the objectives that justify the search in the first place" and that "sufficiently limit the discretion of the officer," id. "Searches in conformity with such regulations are reasonable under the Fourth Amendment." Id. (citing Opperman, 428 U.S. at 376, 96 S.Ct. 3092).

George does not challenge Deputy Chandler's decision to open the pill bottle. The concession is well-taken because the Shelby County Sheriff's Department's inventory search policy leaves no room for officer discretion in such an instance; it states that "[c]losed or locked containers shall be opened," state's exhibit 4 at 2 (November...